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Guide To The Federal Tort Claims Act


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Article Index | Vegas Lawyer


1. Introduction
2. Authorities
3. Establishing Liability Under the FTCA
     Negligent or Wrongful Act or Omission
     Federal Employee
     Non-Federal Employee
     Scope of Employment
     State Where Act or Omission Occurred
     Federal Employees Liability Reform and Tort Compensation Act, 1988
4. Exceptions to FTCA
     Discretionary Function
     Intentional Torts
     Misrepresentation
     Underlying Duty
     Good Samaritan Doctrine
     Interference with Contractual Relationships
     Quarantine
     Cause of Action Arising in a Foreign Country
5. Statute of Limitations
6. Initiating a Claim
     Administrative Claim
     Appropriate Federal Agency
     Written Demand for Money Damages
     Specific Dollar Sum
     Signature of Claimant
     Identification of the Cause
     Lawsuits
7. Exceptions to Administrative Claim Requirements
     Counterclaim
     Cross-claim
     Third Party Claim
8. Procedures For Handling Administrative Claims
     Date Stamp
     Freeze Files
     Designated Tort Claim Representatives (TCR)
     Claim Investigation
     Memoranda of Facts and Findings
     Forwarding Claims to the Designated TCR
     Examination of Claim
     Invalid or Incomplete Claims
     Valid Claims
     Substantiation of Claim
     Request for Information
9. Memoranda of Facts and Findings
10. The Administrative Report
     Background Information
     Analysis of the Events
     Relevant Documentation
     Respond to Every Allegation
     Determination of Fault
     Policy Recommendation
     Damage Analysis
     Claims Against the Claimant
11. OGC Determination of Claims
     Forwarding of Claim and Claim Files to OGC
     Determination of Claims
12. Tort Claim Payment
     Payment Procedures for Tort Claims $2,500 or Less
     Payment Procedures for Tort Claims Exceeding $2,500
     Final Settlement
     Records
13. Litigation
     Lawsuits Against the United States
     Lawsuits Against an Employee of the Federal Government
14. Steps in Litigation
     Complaint and Summons
     Discovery
     Motion to Determine a Lawsuit Prior to Discovery
     Pretrial Statement
     Trial Preparation
     Trial
15. Summary of Responsibilities
16. Glossary
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8
     Exhibit 8 A
     Exhibit 8 B
     Exhibit 8 C
     Exhibit 8 D


1.    Introduction



In 1946 the Federal Tort Claims Act (FTCA) established a system for filing claims against the United States. This means an individual may sue the United States for money damages, loss of property, personal injury, or death provided circumstances fit within the strict limits of the FTCA. The FTCA permits recovery of money damages because of a negligent or wrongful act or omission by the Federal Government or an employee of the Federal Government while the employee was acting within his/her scope of employment or office.

2.    Authorities



The following laws and regulations govern the procedures and processes for administering claims against the Government:

  • FTCA (28 U.S.C. 1346(b), 2401(b), and 2671-2680
  • Department of Justice (28 CFR 14)
  • General Accounting Office (7 GAO 21.20)
  • Department of Agriculture (7 CFR 1.51 and 2.31, and Departmental Regulation 2510-1)

3.    Establishing Liability Under the FTCA



Negligent or Wrongful Act or Omission

Under the FTCA, the United States is liable for money damages for loss of the claimant's property, personal injury, or death caused by the negligent or wrongful act or mission of any employee of the Government while the employee was acting within the scope of his/her office of employment.

Proof of Negligence.
The claimant must prove that there was a negligent or wrongful act or omission by an employee of the Federal Government.

Proximate Cause. The alleged negligent or wrongful act or omission must have actually caused the damage to the person filing suit.

Federal Employee

An employee of the Federal Government must have committed the negligent or wrongful act or omission. The Act extends liability to include agents of the Federal Government or non-Federal employees working on joint ventures or cooperative agreements.

Non-Federal Employee

To determine liability for actions involving non-Federal employees under the FTCA, ask the following questions:

  • Was the non-Federal employee performing a function in support of a Federal requirement?

  • Was the non-Federal employee working on behalf of the Federal Government in support of a Federal requirement at the time of the accident or incident?

If yes, the Federal Government may be liable for any damages incurred under the FTCA.

Scope of Employment

The negligent or wrongful act or omission of employees of the Federal Government must have been committed while employees were acting within their “scope of employment.” State law determines the definition of scope of employment. This may/may not be the same as the Federal Government's definition of “official duties.”

The Drivers Act section of the FTCA gives statutory immunity to Federal employees while driving Government vehicles within their scope of employment. This means a Federal employee involved in an accident while driving a Government motor vehicle in his/her scope of employment cannot be sued as an individual.

State Where Act or Omission Occurred

A program activity that causes loss or damage to an individual may be considered negligent and liable in one State and not in another. The determining factor is the common law of the State.

Common Law. The common law for a State is a system of law based on judicial precedent. This is not limited to State statutes. In addition to State statutes, the interpretations and developments of these statutes that the courts have handed down over the years also are State law.

Liability under the FTCA is based on what the courts have determined to be common law of torts in that State. The Federal Government is not protected by any State restrictions imposed on filing suits against a State, county, or municipal government. If a private person or company is liable under the tort laws of the State, the United States is liable in like circumstances.

Analogous Duty. Conversely, if the State law does not consider an activity or action to create liability under State law, an individual cannot file a claim against the Federal Government under the FTCA. This is called the doctrine of “analogous duty.”

Federal Employees Liability Reform and Tort Compensation Act, 1988

This Act:

  • protects Federal employees from personal liability for common law torts if they were acting within the scope of their office of employment. The U.S. Attorney General certifies as to the employee's capacity at the time of the incident. If the Attorney General denies certification, the employee can petition the Federal Courts. If the Courts denies the certification, they will remand the action to the State Court;

  • provides citizens with an exclusive remedy against the United States;

  • restores the liability protection for Federal employees; and

  • does not provide immunity from personal liability as a result of civil action brought for violation of Constitution of the United States or which is otherwise authorized by any Federal statute that specifically provides for personal liability suits.

State employees should refer to their particular State law on liability, immunity, and indemnity.

4.    Exceptions to FTCA



When Congress enacted the FTCA, they also listed certain kinds of activities that would be exempt from liability. 28 U.S.C. 2680 lists all the exceptions. However, the ones most often cited are:

  • Discretionary Function. The FTCA excludes any claim arising out of the performance or nonperformance of a discretionary function or duty. Discretionary functions refer to the policy and planning functions of each Federal agency. Under the FTCA, a Federal agency cannot be sued and held liable for damages resulting from policy or planning decisions of that agency. Discretionary functions do not include policy or      planning decisions that violate the norms or guidelines established by the appropriate industry or discipline. An agency cannot claim discretionary function when it violates established norms and guidelines clearly listed in a book or manual.

  • Intentional Torts. The FTCA specifically excluded any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. (These exclusions do not apply to law enforcement personnel.)

  • Misrepresentation. This includes those Federal employees whose duties and responsibilities are to inspect or grade products or provide advice and guidance to the public. If in the performance of these duties an employee was found negligent, misrepresented a product, or caused an erroneous action, the injured party could not sue the Government based on such misrepresentations.

  • Underlying Duty. The Supreme Court made a distinction between misrepresentation and Federal employees' responsibilities to perform their underlying duties. The Supreme Court ruled that while the injured party could not sue for misrepresentation, the injured party may sue the Government because employees were negligent in performing their duties if such negligence violated a duty under State law. If a claimant can prove damage by a negligent or wrongful act or omission of Federal employees in the scope of their employment, the claimant can sue under the FTCA.

  • Good Samaritan Doctrine. Many have recognized what is commonly referred to as the “Good Samaritan Doctrine.” This doctrine says although a person does not have the duty to perform a certain task, if that person voluntarily assumes that task and is negligent in the performance of that task, that person can be held liable for any damages incurred. The Supreme Court ruled that if State law recognized such a duty, the claimant could prove that a Federal employee voluntarily undertook the duty, did it negligently, and the claimant was damaged by the action. The claimant could then be compensated under the FTCA.

  • Interference with Contractual Relationships. This exclusion covers situations generally arising out of program activities in which an outside party claims a loss of some business due to some action of the Federal Government. This usually occurs when a company claims that a Federal agency did something which barred or interfered with their ability to get, keep, or not lose some business the company had with another outside party.

  • Quarantine. A cause of action arising out of the way the Department administers quarantines is not suable under the FTCA. This applies to all quarantines, including the quarantine of areas, animals, crops, goods, etc.

  • Cause of Action Arising in a Foreign Country. The United States is not liable for any cause of action arising in a foreign country. If the negligent or wrongful act or omission by an employee of the Federal Government took place in a foreign country, the injured party could not sue the United States under the FTCA. The Government would be liable, however, if the claimant could prove that the injury received was the result of negligent or wrongful act or omission which took place in the United States.

5.    Statute of Limitations


The statute of limitations is the time limit an individual or company has to file an administrative claim, in writing, with the appropriate Federal agency. The statue of limitations under the FTCA is 2 years from the date of the accrual of the claim. The accrual of a claim begins at the moment the Government violated an individual's rights and the individual was damaged. In some cases, the accrual of the claim is not easy to determine and may be subject to interpretation by the court. While the court cannot change the 2-year statute, they can interpret the date on which it begins.

6.    Initiating a Claim


To initiate a claim against the Federal Government under the FTCA, the claimant must file an administrative claim with the appropriate Federal agency within 2 years of the accrual of the claim.

Administrative Claim

A valid administrative claim is when the appropriate Federal agency receives a written demand for money damages, indicating a specific dollar amount, signed by the claimant or someone authorized to sign for the claimant, identifying the cause which led to the claims.

Appropriate Federal Agency

The Federal agency whose program resulted in the claim must receive an administrative claim. If another Federal agency receives the claim, that agency will immediately forward the claim to the appropriate agency, if known. If the agency cannot identify the appropriate agency, the agency must return the claim to the claimant.

Written Demand for Money Damages

A claim against the Government must be in writing and must include a demand for money damages. The claim may be a letter, form SF-95, Claim for Damage or Injury, or other written communication which meets the requirements of an administrative claim. (See Exhibit 1 and Exhibit 2.)

Claimants may use form SF-95 to file a claim under the FTCA. However, if this form does not contain all the requirements of an administrative claim, then it is not a valid claim. In addition, not all complaint letters that request money are claims under the FTCA. Some complaint letters are simply complaint letters and should be treated as such.

All written communication from a party alleging damages and indicating an intent to sue the United States for money damages should be checked against the requirements of claim under the FTCA.

Specific Dollar Sum

An administrative claim must contain a single dollar amount which represents the exact amount of money damages demanded by the claimant. It does not have to be a reasonable amount but it must be a number. Claims which do not contain an exact dollar amount or contain a dollar amount with a qualifying statement such as approximately, at least, almost, etc., do not meet the requirement of listing a specific sum.

Signature of Claimant

An administrative claim must contain the signature of the party demanding damages or someone authorized to sign for the claimant. If someone signs the administrative claim other than the claimant, such as an attorney or an insurance company representative, evidence of authorization must accompany the claim signed by the claimant. A copy of a retainer agreement, an affidavit, or a letter must accompany a claim signed by an attorney for the claimant, signed by the claimant, authorizing this attorney to represent the claimant in this case. A statement in a claim signed by an attorney or enclosed in a letter that states that they are representing the claimant is not an acceptable statement of authorization. The claimant must sign the evidence of authorization.

Identification of the Cause

The FTCA obligates the claimant to identify the activity or incident which caused the claim. The claim must contain sufficient information for the agency to identify the cause of the complaint. This is to provide the agency an opportunity to investigate the case.

Lawsuits

Filing a claim in a Federal or State court does not constitute an administrative claim. An individual who initiates an action against the United States by filing a claim in a Federal or State court is not relieved of the requirement to file an administrative claim with the appropriate Federal agency within 2 years of the accrual of the claim.

7.    Exceptions to Administrative Claim Requirements



Claimants can file three types of actions against the United States that do not have to meet the requirements of an administrative claim. In these three actions, the United States has already initiated a suit against the party filing the claim. The United States has only 60 days to respond to these types of actions. Since these cases involve short time limits, the Tort Claim Representative (TCR) must prepare a prompt response to the Office of General Counsel's (OGC) request for an administrative report. These actions are:

Counterclaim

A party which the United States is suing may file a counterclaim in that action. A counterclaim does not have to arise out of the same action which caused Government's suit but can be based on a separate incident entirely.

Cross-claim

A cross-claim is a claim between two parties. In a cross-claim, one defendant is suing another defendant or one plaintiff is suing another plaintiff.

Third Party Claim

In a third party suit, one party to the suit is suing another outside party. For example, a defendant in a suit filed by the United States can file a third party claim alleging that the liability for the damage incurred by the Government rests with a third party.

8.    Procedures For Handling Administrative Claims


Date Stamp

All REE offices which receive a claim for money damages, including form SF-95's or any correspondence that shows an intent to sue for money damages, must attach the following information to the claim:

  • The day, month, and year the claim was received.
  • The name of the location receiving the claim.
  • The name of the employee receiving the claim.

This information is essential in determining the validity of a claim and the agency's ability to support that determination in court.

The date used in determining compliance with the statute of limitation requirements is the date the appropriate Federal agency received the claim. All other dates (the date the claim was prepared, signed by the claimant, or mailed) are irrelevant. An agency may be liable for claims that fail to meet the statute of limitation requirements if that agency is unable to verify the date they received the claim.

The name of the individual receiving the claim and the location are also important. Attorneys for the Government may require an affidavit from the employee receiving the claim to support a claim denial based on failure to meet the statute of limitation requirements.

Freeze Files

Offices must maintain all records about the claim, accident, or incident that led to the claim. This includes all information, papers, documents, evidence, exhibits, etc. The agency may not dispose of any relevant information until OGC makes a determination in the claim and closes the case. The time between the accident or incident and the trial date may be 5 years or more.

Designated Tort Claim Representatives (TCR)

Offices that receive and are involved with the claim must notify their appropriate TCR. Within REE, the various TCR's are:

ARS Field Locations. The Location Administrative Officer is the designated location TCR. However, the location TCR forwards all information to the designated Area TCR for processing. In most cases the designated Area TCR is the Area Property Management Officer or other designated personal property official. The Area TCR and OGC Regional Office, will handle claims demanding money damages for $100,000 or less.

REE Headquarters and NASS Field. The Personal Property Group Leader, Procurement and Property Branch, PPD, is designated as the Agency TCR for REE Headquarters, which includes ARS-Headquarters, CSREES, ERS, NASS, and NASS- Field. The Agency TCR administers the tort claim program for the REE agencies. Also, the Agency TCR and OGC Headquarters, will handle all claims for REE Headquarters and ARS field locations claims demanding money damages that exceed $100,000.

Claim Investigation

It is the responsibility of each Federal agency to investigate all accidents or incidents involving agency programs, employees, or cooperators that lead to the tort claim. The responsibility for investigating claims within REE is:

  • ARS Field Locations. The location TCR's will investigate all accidents or incidents at their location and will forward the investigation to their Area TCR. However, the specific employee and the employee's supervisor, or program activity whose actions led to the claim, and the location TCR will be responsive to specific inquiries and requests for information and will fully cooperate with the Area TCR in preparing the claim.

  • NASS Field. The State Statistician, through the NASS Deputy Administrator for Field Operations, will investigate all accidents or incidents within the statistician's field office and will forward the investigation to the Agency TCR. However, the specific employee and their supervisor or program activity whose actions led to the claim and the State Statistician will be responsive to specific inquiries and requests for information and will fully cooperate with the Agency TCR in preparing the claim.

  • REE Headquarters. The employee and the employee's supervisor, through their administrative officer, division director, or deputy administrator, will investigate all accidents or incidents and will forward the investigation to the Agency TCR. They will also be responsive to specific inquiries and requests for information and will cooperate fully with the Agency TCR in preparing the claim.

This does not exclude other agency program representatives such as Area Safety and Health Officers from conducting their own investigation. Also, the Office of Inspector General or other Department representatives may choose to investigate cases involving Federal criminal law violations, substantial injuries, or death.

The responsible agency will investigate any incident involving personal injury or property damage involving a third party as soon as possible. It is not necessary to wait until the injured party files a claim. This is particularly true in motor vehicle accidents or incidents where there is a strong indication an injured party may file.

The investigation must identify all parties and circumstances involved. When possible, the office will take pictures to substantiate the investigation. The investigation will help the designated TCR prepare an administrative report and help determine agency liability. At no time during an investigation will any agency personnel indicate or imply liability by the Federal Government.

Memoranda of Facts and Findings

The Memoranda of Facts and Findings provides the Area or Agency TCR with all the facts and circumstances involved in the case and provides the basis for the administrative report. This is necessary for each claim filed under the FTCA. The location TCR prepares the Memoranda of Facts and Findings for ARS field location and forwards it to the Area TCR. The Agency TCR prepares when necessary, or assists the administrative officer, division director, state statistician, or associate/deputy administrator with preparing, the Memoranda of Facts and Findings for REE Headquarters.

Forwarding Claims to the Designated TCR

After the office completes the claim investigation, indicating the date, location, and name of the employee, they must forward the claim to their designated TCR as soon as possible. This includes the claim and any relevant information regarding the claim, accident, or incident that led to the claim.

Examination of Claim

The Area or Agency TCR, in consultation with OGC, will examine all form SF-95's or written correspondence that indicates an intent to sue for money damages. The TCR will determine if the claim meets the requirements of a valid administrative claim under the FTCA.

Invalid or Incomplete Claims

The designated TCR will notify in writing any party submitting form SF-95 or written correspondence that does not meet the requirements of an administrative claim as soon as possible. This notification must identify the deficiencies and cite the law supporting that determination.

However, if the TCR does not receive a corrected administrative claim from the claimant within 4 months after receipt of the initial claim, the TCR will contact OGC to determine the appropriate course of action. A claimant may elect to treat 6 months after the filing of a claim as a denial and initiate court action. (See Section 13, Lawsuits Against the United States.) In this case, the claimant may intentionally ignore the TCR's request for information and demand for substantiation of the claim.

Valid Claims

If the administrative claim is in order, the TCR will acknowledge receipt of the claim, in writing, informing the claimant or the claimant's representative that the TCR has referred the claim to OGC and OGC will issue a final determination of the claim. (See Exhibit 3.) The TCR will not indicate to the claimant whether the agency is assuming any liability in the case. Agency officials are not to concede anything to the claimant about the validity or liability of a claim. OGC will inform claimants if their claim meets all the requirements of an administrative claim and will also issue a determination of a claim and communicate that determination to all parties involved.

Substantiation of Claim

The FTCA requires all claimants to substantiate any claim filed against the United States. If the administrative claim lacks sufficient information to substantiate the claim, the Area or Agency TCR will require the claimant, or the claimant's representative, to provide additional evidence to substantiate the claim. The TCR must request this information in writing, citing the FTCA and appropriate regulations. However, the TCR or OGC cannot make a determination while there is an outstanding substantiation request.


Request for Information

During the investigation the designated TCR has the option of initiating contact with the claimant to request information. The contact may be in the form of a letter or a request for an interview with the claimant or the claimant's representative, family, friends, etc. A request for information is limited to the facts and circumstances surrounding the incident, facts that lead to the alleged negligence, or wrongful act or omission.

Unlike a demand for the substantiation of claim, the request for information implies no obligation on the part of the person asked to respond to or provide the requested information. A letter requesting information must not assert the agency's rights to receive a response. It must be in the form of a request (i.e., “In order to assist our investigation, we would appreciate your assistance in answering the following questions”). The claimant does not have to respond to a request for information or grant an interview. Any attempt to initiate contact with a claimant, the claimant's representative, family, friends, etc., is limited to cases where the office receives evidence of an intent to sue the Federal Government.

In circumstances where the potential claimant has not submitted a claim and it is unclear whether the third party will sue the Government, the investigator will not initiate contact with the third party, relatives, or friends. In these cases, contact is limited to other parties involved, such as employees, the police, eyewitnesses, etc.

If the TCR receives any communication from an attorney representing the claimant, all correspondence relative to the case must be sent through the attorney. This is also true if an attorney forwards the claimant's letter or form SF-95. At times the only indication that an attorney is representing a claimant is when the return address on the envelope is the attorney's address.

9.    Memoranda of Facts and Findings



As stated earlier, the Memoranda of Facts and Findings provides the Area or Agency TCR with all pertinent facts and circumstances involved in the case. The Area or Agency TCR will prepare an administrative report based on Memoranda of Facts and Findings. The location TCR prepares the Memoranda of Facts and Findings for ARS field location and forwards to the Area TCR. The Agency TCR will prepare when necessary, or assist the administrative officer, division director, state statistician, or associate/deputy administrator in preparing the Memoranda of Facts and Findings for REE Headquarters and NASS field offices. Memoranda of Facts and Findings consists of: (See Exhibit 4)

Background Information. The background information must provide information to support the official program that was involved in the incident associated with the claim. This will help determine if the Federal employee was operating in the scope of his/her employment.

Analysis of Events. The incident analysis must contain detailed analysis of the events that occurred that lead to the incident and any factors that were discovered during the investigation.

Relevant Documentation. The Memoranda of Facts and Findings must contain all documents, files, and photographs associated with the claim.

10.    The Administrative Report


The TCR will prepare an administrative report for each valid claim filed under the FTCA. (See Exhibit 5.) The administrative report provides OGC with all the facts and circumstances surrounding the case. The TCR will prepare the report ensuring it contains all the information required for OGC and the Department of Justice (DOJ) to issue a determination in the case and defend that decision in court. The TCR must also attach all documents and pictures relating to the case and forward the administrative report to OGC in triplicate. Do not send the original copy of any evidence, exhibits, etc. Make copies of the documents for attachment to the administrative report. The TCR will keep all original documents for litigation if the claim goes to court. The TCR prepares the administrative report, in narrative format, containing the following:

  • Background Information. The TCR must address the background information of the program involved in the tort claim. This includes reference to statutes authorizing the program and regulations governing the program. In most cases, such as motor vehicle accidents, the background information does not have to be extensive. However, all reports must have some program information to assist OGC in determining “scope of employment.”

    For claims against the program activity, the background information becomes very important. The TCR must provide detailed information on the program activities and indicating the actual details of the program operations. The OGC and DOJ representatives require a clear understanding of the program to determine if an analogous tort exists under State law or if the activity that led to the claim falls within one of the exclusionary categories.

  • Analysis of the Events. The administrative report will contain an analysis of the events that happened, detailing all the parts and circumstances involved in the case. The TCR will base this analysis on the investigation and the Memoranda of Facts and Findings. The report must provide enough information to support a determination by OGC and any subsequent litigation without further investigation.

  • Relevant Documentation. The TCR must attach all relevant documents referred to in the administrative report. If the report refers to a letter sent to or received from the claimant, the TCR must include a copy of the letter. The TCR will not attach original documents to the report, only copies of the documents, letters, etc. The designated TCR will keep the originals on file for use in litigation, if necessary. Examples of relevant documentation that may be necessary for personal injuries include:

    • written report from attending physician of nature and extent of injuries and treatment,
    • prognosis and degree of temporary or permanent disability,
    • period of hospitalization,
    • itemized bills/receipts for medical/hospital expenses,
    • written statement of expected expenses for treatment, and
    • written statement from employer for loss of time/lost wages.

    Examples of relevant documentation that may be necessary for property damage include:

    • proof of ownership,
    • detailed statement of amount claimed with respect to each property item,
    • itemized receipt of payment for necessary repairs or cost of repairs, and
    • if repair is not economical, a written statement listing date of purchase, purchase price, and salvage value.
  • Respond to Every Allegation. The TCR must address all allegations made by the claimant. The administrative report must address and respond to every allegation made in the administrative claim, even if the allegation appears to be irrelevant. Administrative claims may vary a great deal in length. Form SF-95 may contain only two lines while other claims have 10 page attachments. The information regarding the allegation must be sufficient for OGC to reach a determination.

  • Determination of Fault. The administrative report must state the agency's opinion of fault relating to the claim. OGC and DOJ require the agency's opinion of liability when making a final determination on a claim. In certain cases, such as automobile accidents, a detailed description of the events will make a determination of fault self- evident. However, in claims filed against program activities, the administrative report must indicate a determination of fault with clear, supporting evidence. This is particularly true in claims which allege an employee engaged in a negligent or wrongful act in a highly technical area. The TCR will include technical evidence or an analysis from a technical expert(s) to support a determination. The agency may use technical experts on staff or outside consultants. However, an individual not involved in the facts and circumstances of the case must provide the technical analysis.

  • Policy Recommendation. The administrative report must state whether there are any agency concerns regarding policy implications in admitting liability in a tort claim. In most cases, there are no policy considerations involved. Policy concerns usually stem      from tort claims involving program activities. The agency must inform OGC if the admission of liability in a particular case will seriously impact the agency's ability to perform its mission. The agency will have to support this type of determination.

  • Damage Analysis. The administrative report includes an analysis of the damages that the claimant alleges have been incurred. OGC may allow the agency to omit a damage analysis for cases where the defense is sufficient to deny the claim without spending time on a claim analysis.

  • Claims Against the Claimant. The administrative report must also include any information the agency may have regarding claims the Department or agency may have against the claimant. This includes damages the agency may have incurred as a result of the accident or incident in question. The agency may use this information to file a counterclaim against the claimant.

    This information is not only limited to the incident that led to the claim. The report must include information on any outstanding business the Department or agency has with the claimant. For example, the agency may have an outstanding claim against the individual stemming from another incident or the individual may be in default of a loan from the Farm Services Agency, etc.

11.    OGC Determination of Claims


Forwarding of Claim and Claim Files to OGC

The TCR will forward the tort claim and administrative report, including copies of all relevant information (mentioned above) to OGC for claim determination. OGC will base the claim determination upon receiving and reviewing the completed administrative claim and the associated documents substantiating the claim. (See Exhibit 6, List of OGC Regional Offices.)

Determination of Claims

OGC will determine whether claims are allowed, compromised, or denied and will appropriately notify claimants. If a claim is allowed in full or compromised, OGC will notify the Area TCR in writing and begin the payment process.

If OGC denies a claim, they will notify the claimant and the claimant's attorney or legal representative. The notification will include a statement that if the claimant is dissatisfied with the Department's action, he/she may file suit in a U. S. District Court not later than 6 months after the date the notification was mailed.

12.    Tort Claim Payment


Regardless of the amount originally claimed, OGC approves awards that do not exceed $25,000. However, the Attorney General must approve awards that exceed $25,000. OGC will take the necessary actions to obtain this approval.

OGC will notify the TCR, in writing, after they approve a claim for payment. This written notification will include an Allowance of Tort Claim which identifies the amount authorized for payment. Payments of $2,500 or less are paid through the appropriation of the agency's activity that led to the claim. Payments that exceed $2,500 are paid through the Judgment Fund, Financial Management Services, Department of Treasury. Two-party payments are no longer issued. Payments are issued in the name of the claimant, however “in the care of” may be added when an attorney is involved.

Payment Procedures for Tort Claims $2,500 or Less

After written notification from OGC, the TCR:

  • Prepares form SF-1145, Voucher for Payment Under Federal Tort Claims Act, for payment (See Exhibit 7.)

  • Indicates applicable accounting code/appropriation number for the responsible work unit on form SF-1145.

  • Provides signature as authorized designee, TCR.

  • Obtains “Certifying Officer” signature from the agency's appropriate budget and financial management staff, such as the Area Budget and Fiscal Officer, administrative officer, or agency financial management representative.

  • Forwards original notification documents and form SF-1145 to the claimant's representative (along with a self-addressed return envelope) with instructions to sign, provide a tax identification number, and date the SF-1145 in the appropriate space and return the entire package to the TCR.

  • Submits, via express mail, a properly completed and signed original form SF-1145 and a copy of OGC's approval notice to NFC for payment at the following address:

                USDA-NFC, Accounting Reporting Branch
                Reporting Section #4, TANO Building
                4277 Piche Court
                New Orleans, LA 70129
  • Retains a copy of the correspondence and all supporting documentation for the file.

Payment Procedures for Tort Claims Exceeding $2,500

Payment under the Judgment Fund was transferred from the General Accounting Office (GAO) to the Department of the Treasury, Financial Management Services. The guidance does not vary substantially from GAO guidance; however, payment authorizations are made using different forms. The forms are not available through standard forms channels, but agencies can photocopy forms as necessary. (See Exhibit 8 for photocopy.) The forms are also available through the Internet at the Department of the Treasury, Financial Management Service's website at http://www.fms.treas.gov

The appropriate OGC attorney prepares form FMS-195, Judgment Fund Payment Request, form FMS-196, Judgment Fund Award Data Sheet, and form FMS-197, Voucher for Payment of Judgements, Compromise Settlements, and Administrative Awards, for awards exceeding $2,500. (See Appendix 8A, B, & C, respectively, for completed forms.) OGC completes as much of the form as possible and forwards the package to the appropriate TCR for completion. The TCR:

  • Forwards the original notification documents and form FMS-197 to the claimant's representative (along with a self-addressed return envelope) with instructions to sign and date the form in the appropriate spaces and return the entire package to the TCR.

  • Requests the claimant to include their tax identification number or social security number on payment documents. (This is now required by law on all payment vouchers certified for payment by the Department of Treasury.)

  • After receipt back from claimant, forwards the case file, including all forms and supporting documents to the Department of Treasury at the following address:

            Judgment Fund Branch
            Department of the Treasury
            Financial Management Service
            Prince George's Metro Center #2
            Mail Stop 6F03
            3700 East-West Highway
            Hyattsville, MD 20782
            202-874-6664

It will take approximately 6 weeks for FMS to process payment of claims. If you have not received any information after 6 weeks, the TCR can call the Judgment Fund Branch (number above). The Judgment Fund Branch will need specific case information such as the specific spelling of the case name, the date the claim was sent, and the amount of the award.

To help ensure prompt processing of claim payments to FMS, the TCR should:

  • include the claim number/file number for each case
  • only send one original set of documents
  • use current versions of forms
  • mail requests, do not fax unless specifically requested by FMS
  • include the social security or tax payer identification number of the claimant


Final Settlement

The acceptance by a claimant of any award, compromise, or settlement is final and conclusive on the claimant and constitutes a complete release of any claim against the United States and against the Government employee whose act or omission led to the claim.

Records

The TCR must retain copies all memoranda, reports, exhibits, and other documents supporting the settlement of a claim and make them available to GAO and the Treasury Department for audit purposes. TCR's cannot destroy or send the records to the Federal Records Center until after the matter is officially closed. USDA Records Management Regulations, ASAR 3040-1, states agencies can dispose of files 1 year after final settlement/disposition of the case, or 1 year after the 2-year statutory limitation on the filing of claims expires.

13.    Litigation


Lawsuits Against the United States

There are two instances where the injured party, after submitting an administrative claim, can file suit against the United States in a Federal District Court. They are:

  • Denial of an Administrative Claim. A claimant may file a suit in Federal District Court after receiving OGC's claim denial. OGC will inform all claimants of a denial of a claim by registered mail. The claimant has 6 months from the date OGC mailed the notification to file a claim against the United States in Federal District Court.

  • 6 Months After Submitting an Administrative Claim. The claimant may elect to treat the passage of 6 months after the submission of an administrative claim as a denial of the claim for the purpose of filing a suit in Federal District Court. The claimant may intentionally ignore the TCR's request for information and demand for substantiation of the claim.


The DOJ will represent the United States and the Federal agency whose actions led to the complaint. OGC's role is to take the claim through the administrative claim process. Once a claim reaches court, OGC serves as a background and support resource for DOJ.

Lawsuits Against an Employee of the Federal Government

Claimants may only sue the United States under the FTCA. REE agencies, various REE programs, and employees cannot be sued under the FTCA. However, this does not prevent a claimant from suing employees in their official capacity or their individual capacity.

Official Capacity. An employee may be named as a defendant in a suit against the United States when the claimant seeks damages only against the United States. Employees are named in the suit because of their official involvement with the case.

Individual Capacity. A claimant may file suit in court against an individual employee of the Federal Government seeking money damages from an accident or incident which may or may not involve actions taken within the employee's scope of employment. The suit is not against the United States but seeks money damages from the individual employee.

If the action or activity which led to the suit was within the outer perimeter of the employee's duty, the employee may receive legal representation from DOJ. To arrange representation, OGC must forward a request for representation on behalf of the employee to DOJ. Submitting this request is strictly voluntary. Employees may provide their own attorneys. DOJ will make the final determination on a request for representation.

Before OGC submits the request to DOJ, employees must acknowledge that if found liable by the courts, they must pay the damage. The United States is not authorized to pay for damages in a judgment brought against employees sued in an individual capacity. Employees are responsible for their own legal representation in court if OGC declines to submit a request for representation or DOJ denies the request.

14.    Steps in Litigation


Complaint and Summons

The first step in initiating a lawsuit against the United States is filing a complaint in Federal District Court. A complaint asks for damages or other relief and sets forth the basis for relief. A summons is notification that the individual, or a representative of the United States or the agency, is named in a complaint and must appear in court on the specified date named to respond to the complaint. An agency involved in a lawsuit against the United States is notified of the suit when a representative of that agency or an individual employee receives a complaint or a summons. Most complaints or summonses involving Federal agencies are sent directly to OGC. Should an individual employee or agency representative receive a complaint or summons, the employee must immediately contact their TCR who will immediately contact OGC. A summons or a complaint against an employee in that employee's individual capacity, filed in a Federal or State court, requires a response within 20 days of the date mailed or served. A summons or complaint against the United States or involving a Federal employee operating within that employee's scope of employment, filed in Federal District Court, requires a response within 60 days. (For other judicial orders that do not appear to fall under the category of tort claims, e.g., a subpoena for expert testimony, please refer questions to the Human Resources Division, ARS/AFM.)

OGC will notify the Agency TCR of all tort claim related complaints or summonses involving their agency. The notification will include a copy of a form letter, a copy of the complaint, and the name of the OGC attorney handling the case. In most cases the complaint will be generally the same as the administrative claim. If the agency has any new information or new developments to add before OGC responds, the TCR must contact OGC immediately and forward this information.

Discovery

Discovery is a chance for each side in a suit to examine the other side's case. This allows each side to see the facts and circumstances involved in order to attempt to reach a settlement before the case goes to trial. There are four main types of discovery:

  • Interrogatory. Interrogatories are questions requiring an answer under oath within 30 days. The TCR receives the questions and prepares a draft response for OGC and DOJ review. OGC will advise the TCR in preparing answers to certain questions contained in the interrogatory. OGC, after consulting with DOJ, may advise the TCR not to answer certain questions because the U.S. Attorney's Office is planning to object to the validity of the questions.

  • Request to Produce Documents. This is a request for an examination of certain papers or documents. OGC and DOJ will make the final decision on what papers or documents are copied or made available for review.

  • Request to Admit. Another type of discovery is a request to admit or deny certain facts or circumstances involved in the case (i.e., Do you admit that on January 3, 1993, John Jones was employed by the Department of Agriculture and was operating a 1989 Ford Sedan within his scope of employment?).

  • Deposition. A deposition is an opportunity for the parties or witnesses involved to answer questions under oath. A deposition may be included as part of the discovery process. A deposition is similar to a trial although the judge is not present. A deposition includes a court reporter, the attorneys, and any witnesses or third parties called to give a deposition. The court reporter has the authority to swear in a witness and transcribe the deposition. Any person refusing to answer questions posed during the deposition process may be held in contempt of court. Before giving a deposition, OGC and DOJ will counsel an employee of the Federal Government.


Motion to Determine a Lawsuit Prior to Discovery

In order to avoid the lengthy discovery process, DOJ may file a motion to determine a lawsuit prior to discovery. For these types of cases, the motion is a request to the judge to dismiss or for a summary judgement.

Motion to Dismiss. The United States has 60 days to answer a complaint filed in Court. The answer is either an admission of liability, a denial, or a denial from lack of information. In lieu of an answer, DOJ may submit a motion to dismiss because the claimant failed to meet the statute of limitations or the claim falls within the exclusionary category. The United States does not have to file a motion to dismiss at the beginning of litigation. The United States may file after discovery or after reviewing all the information supporting the claim.

Motion for Summary Judgment. A motion for summary judgment alleges that there are not material facts in dispute and that, as a matter of law, one side should get the judgement in its favor.

Pretrial Statement

The final step before trial is the preparation of a pretrial statement. A pretrial statement is a statement of factual and legal issues that are agreed upon and those that are in dispute. Also included is a statement about the possibility of settlement. DOJ and OGC may require the TCR to provide additional information for the pretrial statement.

Trial Preparation

During the preparation and filing of the pretrial statement, DOJ may request the TCR's assistance. This may include providing additional information found during the discovery process and selecting and preparing witnesses for trial. Since the trial may take place 4 or 5 years after the incident that led to the claim, a fair amount of time is necessary to locate, prepare, and arrange transportation for witnesses. Usually, there is a last minute attempt to settle before the trial actually begins.

Trial

The Federal District Court Judge will try all cases against the United States. The defendants do not receive a trial by jury.

15.    Summary of Responsibilities


Agency Tort Claim Representative (TCR)

  • Administers the REE tort claims program.

  • Provides guidance to REE employees regarding tort claims.

  • Acts as liaison between REE and OGC.

  • Administers all tort claims filed at the REE Headquarters level which includes ARS- Headquarters, CSREES, ERS, NASS, and NASS-Field.

  • Examines claims against FTCA requirements.

  • Maintains a log of all tort claims filed against REE Headquarters level.

  • Provides guidance to management when conducting an investigation of accidents or incidents that led to the claim for REE Headquarters.

  • Prepares administrative reports for all tort claims in REE Headquarters and for ARS Field locations claims that exceed $100,000.

  • Provides information to OGC and DOJ to represent REE Headquarters.


Area Tort Claim Representative (TCR)

  • Administers the ARS Tort Claim Program at the Area level.

  • Provides guidance to Area employees regarding tort claims.

  • Acts as liaison with the Agency TCR and the OGC Regional Office for their Area.

  • Administers all tort claims filed at the Area level.

  • Maintains a log of all tort claims filed at the Area level.

  • Examines Area claims against FTCA requirements.

  • Freezes all Area files relative to the accident or incident that led to the claim.

  • Forwards reporting information to Agency TCR on Area claims when requested.

  • Conducts or assists with the investigation of all accidents or incidents that led to the claim.

  • Prepares an administrative report for Area claims that do not exceed $100,000.

  • Submits claims, claim files, and administrative reports to the regional OGC office.

  • Forwards claims exceeding $100,000 to the Agency TCR for processing.

  • Prepares Area correspondence regarding request for information and substantiation of claims.

  • Provides information to OGC, DOJ, and the Agency TCR during tort claim determination and litigation.

Location Tort Claim Representative (TCR)

  • Acts as liaison with the Area TCR.

  • Freezes all location files relative to the accident or incident.

  • Notifies the Area TCR of location tort claims received.

  • Conducts an investigation of all location accidents or incidents that may lead to a claim.

  • Forwards information to Area TCR for correspondence regarding requests for information and substantiation of claims.

  • Prepares and forwards Memoranda of Facts and Findings to the Area TCR for administrative reports.

  • Transfers claims, claim files, and Memoranda of Facts and Findings to Area TCR.

  • Provides information to Area TCR and the Agency TCR during tort claim determination and litigation.


REE Supervisor

  • Notifies designated tort claim representative of all accidents and incidents within the supervisor's area of responsibility that may result in a tort claim.

  • Cooperates with designated tort claim representative in providing all information regarding the incident, conducting the investigation, and providing information for the Memoranda of Facts and Findings and the administrative report.


REE Employee

  • Notifies supervisor of an accident or incident that may lead to a tort claim.

  • Cooperates with management and the designated TCR in providing all information regarding the incident.

16.    Glossary


Administrative Claim. A written request for money damages, indicating a specific dollar amount, signed by the claimant or someone authorized to sign on the claimant's behalf. The claim identifies the circumstance which gave rise to the claim and is submitted to the Federal agency whose actions led to the claim.

Accrual date. A date of the incident causing the loss or damage or when the loss or damage is, or should have been, discovered by the claimant.

Agency Tort Claim Representative (TCR). The ARS, AFM, PPD, PPB, Personal Property Group Leader is the designated individual who oversees the tort claim program for the REE agencies; processes tort claims filed against REE Headquarters, which includes ARS- Headquarters, CSREES, ERS, NASS, and NASS-Field.

Area Tort Claim Representative (TCR). In most cases, this is the ARS Area Property Management Officer or other personal property official who is designated as the tort claim representative for the Area.

Counterclaim. A claim filed in opposition to another claim.

Complaint. A legal document filed with a court asking for damages or other relief and setting forth the basis for such relief.

Cross-claim. A claim between two parties, either between one defendant suing another defendant or between one plaintiff suing another plaintiff.

Discovery.
Data or documents that a party to a legal action is compelled to disclose to another party either prior to or during a proceedings.

DOJ. Department of Justice.

Form FMS-195. (Local Reproduction). Judgment Fund Payment Request (Administrative Award).

Form FMS-196. (Local Reproduction). Judgment Fund Award Data Sheet.

Form FMS-197. (Local Reproduction). Voucher for Payment of Judgments, Compromise Settlements, and Administrative Awards.

Form SF-95. (Available in Informs). Claim for Damage or Injury.

FTCA. Federal Tort Claims Act.

Location Tort Claim Representative (TCR). The ARS Location Administrative Officer.

Negligence. The performance of some act which a person of ordinary prudence would not have done under similar circumstances, the failure to do what a person of ordinary prudence would have done under similar circumstances, or conduct which falls below the standard established by law for the protection of others against unreasonable risk or harm.

OGC. Office of General Counsel.

Omission. The intentional or unintentional failure to act which may impose liability depending upon the existence of a duty to act under the circumstances.

Summons. A process directed to the sheriff or other proper officer requiring the officer to notify the person named that an action is filed against the person and that the person must appear in Court on the specified day to answer the complaint.

Third Part Claim. One party to a suit suing another outside party.

Tort.
A violation of an individual's rights, other than a breach of contract, which results in a loss of property, property damage, personal injury, or death.

Tort claim. A written request for money damages, indicating a specific dollar amount, resulting from the violation of an individual's rights, other than a breach of contract, which has caused a loss of property, property damage, personal injury, or death to the claimant.

TCR. Tort Claim Representative.

Wrongful act.
When a private person complains of injury or loss of property or personal injury or death alleged to be caused by the negligent or wrongful act or omission of an agency employee and expresses an intention to seek monetary compensation for damages from the Government, the agency must inform the person of procedures for filling a claim under the FTCA.

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